IMPORTANT POINT
The court affirmed that compliance with the mandatory requirements outlined in the NIT is essential for eligibility in the bidding process.

JUDGMENT :

Sanjay Kumar Medhi, J.

9(Nine) petitioners have joined together in constituting a challenge to a common email dated 20.07.2023 by which the petitioners have been informed that their bids were cancelled. Such bids were submitted pursuant to an NIT dated 07.07.2023 floated by the FCI for supply of 100 MT of wheat.

2. As per the facts projected, the petitioners which are 9(nine) in numbers have their offices at Guwahati. The petitioners had participated in the said NIT by depositing an Earnest Money Deposit (EMD) of Rs.1.10 lakhs each. Subsequent to such participation, the petitioners who claim to be eligible in all respects, were anticipating allotment of work order. It is the case of the petitioners that the terms and conditions for empanelment of technically qualified bulk consumer have been given in the NIT. It is submitted that so far as GST registration under clause A(i)(v) is concerned, the same is not a mandatory requirement. It is also the case of the petitioners that certain communications have been exchanged by email from which it can be deduced that submission of the GST details or registration is not mandatory. The petitioners have also cited similar allotment orders without GST for the State of Jharkhand. However, vide the impugned email dated 20.07.2023, the petitioners have been informed that their bid was cancelled as they did not have GST registration. It is also informed that the bidders having GST registration outside the State of Assam cannot participate in the e-auction of wheat under OMSS(D).

3. I have heard Shri D. Rathi, learned counsel for the petitioners. I have also heard Shri B.K. Singh, learned Standing Counsel, FCI.

4. Shri Rathi, learned counsel for the petitioners has referred to the Clauses of the NIT. By drawing the attention of this Court to the terms and conditions for empanelment of technically qualified bulk purchaser more particularly, Clause A(i)(v), the learned counsel has submitted that attested copy of the GST was to be submitted only if the buyer was registered under such category. It is also submitted that the clause provides for submission of self attested copies of the latest Annual Balance Sheet and Profit and Loss Account duly audited by a Chartered Accountant. It also provides that for a newly established firm or the existing firms which have recently started to deal in the business of wheat, a provisional Balance Sheet and Profit and Loss Account accompanied by a limited review by the Auditor / Chartered Accountant should be furnished. It is only when such certificate cannot be furnished, the requirement of GST returns would arise.

5. The learned counsel for the petitioners has also drawn the attention of this Court to certain emails to demonstrate that it was within the understanding of the parties that GST certificate / registration is not mandatory. By referring to the emails dated 17.06.2023 issued by the petitioners and the reply dated 18.06.2023 by the FCI, it is submitted that so far as the documents for new registration under the FCI-M Junction is concerned, 3 nos. of documents would be necessary, namely, (i) undertaking on Rs.100 Stamp, (ii) CA Certified BS and PL and (iii) CA Certificate for as proof of wheat business. Attention of this Court has also been drawn to another email dated 21.06.2023 as per which one of the petitioners was asked to furnish CA Certified BS and PL for the year 2021-22 which is a mandatory document. He has also referred to an email dated 17.06.2023 as per which one of the petitioners was directed to furnish undertaking in stamp paper of Rs.100 and BS and PL self attested along with a CA letter for Wheat Business Proof. He has also submitted that so far as a similar procurement process pertaining to the State of Jharkhand, the insistence on GST was not made. The learned counsel for the petitioners accordingly submits that the present impugned action is discriminatory as the FCI cannot have two different stands for two different States.

6. H